Malec

Malec v. Conseil des Montagnais de Natashquan [2010] C.H.R.D. No. 2

Facts

A group of Innu teachers filed a complaint of discrimination against the Conseil des Montagnais de Natashquan claiming that non-Innu teachers were receiving benefits that were being denied to Innu teachers on the basis of race. These benefits included isolated post allowance, annual outing allowance and housing allowance. The benefits were outlined in a policy that was changed in 2007.

Isolated Post Allowance

In the first policy, isolated post allowance was allocated to teachers with a certain level of educational attainment no matter where they lived in relation to the school. No specification between resident and non-resident teachers was made in the policy, which did not specify that the benefit was meant to recruit teachers from outside the region. In practice only non-Innu teachers received this benefit (there was only one exception; a non-Innu teacher who attained aboriginal status through mariage). In the 2007 policy, the language specifies that the isolate post allowance is meant only for non-resident teachers.

Annual Outing allowance

In both policies, annual outing allowance was allocated to teachers based on the distance they lived from Natashquan: only those living outside a 50 kilometer radius of Natashquan were eligible. The purpose is to help non-resident teachers, Innu or non-Innu, return to their permanent residence three times a year. The 2007 policy did not change the substance of the former policy.

Housing allowance

In the former policy, a housing allowance of $450 was given to all its teachers. The 2007 policy restricts allocation of the housing allowance to non-residents; those living outside the 50-kilometer radius. The purpose of this allowance is to help teachers from outside Natashquan for whom it is difficult to get adequate housing at a reasonable price. Almost all the complainants received some housing allowance, notwithstanding that they lived within the radius and did not have rents as high as $450.

Issues

Did the complainants establish prima facie discrimination?

Did the respondent provide a reasonable explanation for any discriminatory restriction?

Decisions

Yes and No

No

Reasons

The Tribunal ruled that the complainants made out a prima facie case of racial discrimination only in the case of the isolated post allowance. The other two benefits were based on residency, not race. In fact Innu teachers were receiving those benefits (the Tribunal did not make a ruling on the legitimacy of resident teachers receiving housing allowance geared towards non-resident teachers). However, in the case of the isolated post allowance, the Tribunal determined that the pre-2007 policy was discriminatory on its face whereas the 2007 policy was not. The former did not specify the eligibility criteria and, in practice, only non-Innu teachers received the allowance. The 2007 policy corrected the problem by specifying that non-residency (i.e. not race) was the criterion.

The respondent did not present any evidence to explain the criteria used to allocate isolated post allowance to non-Innu teachers exclusively. Moreover, it stated that giving all teachers an isolated post allowance would cause the school board to sink into further financial crisis. It provided no facts to prove this; and the evidence was deemed to be "impressionistic".

Order

All complainants are to receive compensation for the years, up until 2007, that they should have received the allowance based on the wording of the old policy.